Category — Cases

U.S. Patent 6,775,664*U.S. Patent 6,308,175* One-time rival of Yahoo! and Google, Lycos claims that TiVo, Netflix and Blockbuster infringe its two patents over the way they provide movie and television show recommendations to customers.

Dale's Comment: *I am not certain of the patents listed above. These were cited by Davis Freeberg as the most likely patents involved.. I'll update if/when I get more information. I wonder why Amazon.com wasn't named here. The methods used by these companies to recommend content is pretty straight forward and, to me, obvious.

From the Thomas Slattery case back in January of 2005 till now there have been several lawsuits brought against Apple alleging Apple's use of proprietary DRM schemes limiting music purchased from iTunes to playing back only on portable devices manufactured by Apple as anti-competitive.

A U.S. District court recently denied Apple's motion to dismiss the Tucker v. Apple case (filed in July 2006) similarly alleging, among other things, that:

Apple has engaged in tying and monopolizing behavior, placing unneeded and unjustifiable technological restrictions on its most popular products in an effort to restrict consumer choice and restrain what little remains of its competition in the digital music markets.

In denying Apple's request, U.S. District Court James concluded,

"the existence of valid business reasons in antitrust cases is generally a question of fact not appropriate for resolution at the motion to dismiss stage.

Melanie Tucker is seeking class status, wants Apple to be enjoined from tieing music bought on iTunes to iPods as the only possible portable playback device for such music plus unspecified damages for all persons that purchased music from iTunes since April of 2004.

Following a similar suit by the BPI in July, AllofMP3.com's Moscow-based parent Mediaservices, Inc. has been sued by the RIAA for massive copyright infringement in the US District Court for the Southern District of New York. According to the New York Post:

The RIAA is seeking $150,000 for each instance of copyright infringement. That equates to an astounding $1.65 trillion for the five-month period in question.

Wow! I suspect they'll have a little trouble collecting this damage award if successful!

Interestingly, along with the damages award, the suit seeks court ordered control of AllofMP3.com's domains. Given the global nature of the Internet, it will be interesting to see if a court would grant such a prayer for relief. Mountainview California-based Verisign operates the domain name registry for the .com domain space.

AllofMP3.com has long claimed that they are in full compliance with Russian law and pay licensing fees on all music sales to Russia's equivalent of the RIAA, the Russian Organization for Multimedia and Digital Systems (ROMS). The RIAA's response is that ROMS has no authority to issue licenses to AllofMP3 and that AllofMP3.com would require licenses from record companies to legally sell downloadable music – which it does not have.

Dale's Comment: Aside from the astronomical damages request, what intrigues me is the global implications of an order to transfer the domain. There has been much controversy at the United Nations over who should control the Internet and the Internet domain space. The U.S. has fiercely guarded its ultimate ability to control it. If such an order was made by a U.S. court at the behest of the U.S. music industry, and if Verisign complies, this might spark protests from nations around the globe.

Note: I have not yet found the claim online. When I do, I'll post it here. Most of the stories online are all repeats of the original AP story so there are not many details available at this point.

Text of Amended Complaint (December 8, 2006) Catherine Lewan, a defendant who settled with the RIAA in one of its many law suits, is now suing Sharman Networks, the creator of Kazaa. The compliant alleges:

the software created a shared files folder (presumably creating the RIAA law-suit liability) without disclosing this to users;

the software it installed spyware

Dale's Comment: This one reminds me a bit of the law suits against Starbucks a few years back where the plaintiffs claimed the coffee was too hot or the lawsuits against McDonalds claiming McDonalds was legally liable for their getting fat. Any user of P2P software knows how the software works and, indeed, can see it working. Files being shared in the shared folder are typically shown graphically in the P2P client's user interface as they are being shared.

While I have little sympathy for the first claims, I do believe that most P2P users never knew that the quid-pro-quo for using the software was the installation of Spyware. Indeed, when a Spyware-free version of Kazza (Kazaa Lite) was distributed without Sharman's consent I seem to recall Sharman using efforts to shut it down.

Universal Music Group has sued Myspace for providing a transcoding service. Myspace users upload videos to their MySpace account and Myspace transcodes them into formats playable by its users. Alleging that MySpace "encourages, facilitates and participates in the unauthorized reproduction, adaptation, distribution and public performance,", UMG is seeking an injunction and unspecified damages, including up to $150,000 for each unauthorized music video or song posted on the Web site. Until last week the two were in licensing discussions. To paraphrase Clausewitz, lawsuits such as this are just business negotiations by another means.

Dale's Comment: This is an interesting claim. It may very well turn on the facts. As I understand them, MySpace is agnostic as to what the content is. It has taken some steps to limit infringing uploads. In this case its servers accept user video uploads, examine the format, if not a supported format they then transcodes it into a playable format. This seems to be similar to what YouTube and other video hosting sites do. But YouTube signed a licensing agreement with Universal (and others) after being threatened with a lawsuit. If Myspace fights this, it will likely argue that it is an ISP, and all they are providing is a tool that can be used by their users for legitimate or illegitimate purposes. Assuming that MySpace is otherwise responding to Universal's DMCA take-down notices, this transcoding service may very well fall within the DMCA's safe harbour.

This one doesn't surprise me. It is more of the same – big media bites off its nose to spite its face by bringing lawsuits against any new business model that they don't sanction. In this case, Boston's Load 'N Go offers a service to their DVD-purchasing customers, by copying their purchased movie onto an iPod. You would think Paramount would appreciate vendors adding value for customers buying Paramount's products. But no, they choose to sue, presumably to force honest purchasers to purchase the movie twice, once on DVD and again as a download. The DMCA makes such copying, even for what otherwise would be fair use, illegal. So, thanks to the DMCA, Paramount seems to have a case. Chalk another one up for Paramount and another loss for honest consumers. This is precisely the thing that drives honest consumers to BitTorrent.

[Nov 29 Update: No doubt Paramount wishes to do what Warner Bros is now doing with videos sold at Walmart. According to CNN, Techcrunch and others, if you buy Warner's “Superman Returns” at Wal-Mart, you can pay an additional $1.97 to play it on portable devices, $2.97 more to play it on PCs or laptops, or $3.97 to play it on either portable devices or PCs/laptops. Ah, the old Big Media nickel and diming profit strategy. Don't you love it!]

[Nov 30 Update: Ha! It appears the EFF has come to the same conclusion – I wonder if they read my blog before writing this.]

The RIAA had initially sued Patricia Santangelo, a divorced mother of five for illegal music downloading. Santangelo, whom a federal judge called “an Internet illiterate parent” plead her innocence and was interviewed on television shows saying that the RIAA was demanding $7,500 to settle the case. The RIAA claims her 20 year old daughter, Michelle, acknowledged downloading music in prior testimony and that the friends of her 16 year old son, Robert, implicated him as well. So, the RIAA is suing them too.

Dale’s Comment: One wonders if this is some form of retribution for speaking out publicly about this. No doubt this is also an attempt by the RIAA to get their message out to the average parent in hopes that they will police the downloading activities of their children more closely.

Text of Motion to Dismiss Last August I wrote about millionaire Shawn Hogan's decision to fight back against the MPAA's allegation that he illegally downloaded "Meet the Fockers". His defense was that he did not do this and wouldn't have since he already owned the DVD. During pre-trial discovery Hogan's legal team discovered that the copyright to the movie was registered by Universal City Studios, LLLP and not the plaintiff to the lawsuit, Universal City Studios Productions LLLP. The plaintiff counters that rights to the movie were assigned to it prior to the filing of a faulty copyright registration. Hogan has filed a motion to dismiss on the following grounds:

One of Europe's largest ISPs, Tele2, has been ordered by a Danish court to block AllofMP3.com, the controversial Russia-based MP3 etailer. To my knowledge, this is the first decision of its kind anywhere in the world. The decision sets somewhat of a precedent insofar as there is now an affirmative obligation of a Danish ISP to effectively censor the sites their customers can access. Tele2 has said it will appeal the decision.

Dale's Comment: This ruling can be easily circumvented by Danish web surfers simply by using any of the numerous anonymizer sites on the Internet.

In a battle reminiscent of the Gemstar/TiVo patent dispute from 2000-2003, which settled when TiVo licensed Gemstar’s patents and agreed to place TV Guide’s logo on TiVo’s onscreen program guide (see CNet account of Settlement here), Gemstar, the owner of TV Guide, is suing Moxi over its use of onscreen programming guides. Apparently this all started when Digeo, Moxi’s parent, sought to license a subset of Gemstar patents pertaining to interactive program guides (IPG). Gemstar would only agree to license the entirety of its patents to Moxi – presumably at a higher fee than Moxi was willing to pay for the subset of IPG-related patents. Moxi had first filed a pre-emptive antitrust suit in September.

TiVo won a $74M patent infringement case against Echostar on April 13, 2006. On August 18, TiVo won an injunction preventing Echostar from making and selling infringing DVRs. The injunction was immediately stayed by the Court of Appeal. Today, the injunction was stayed indefinately pending Echostar’s appeal. This means that Echostar will not have to disable its several million deployed PVRs. “There is a substantial case” for EchoStar’s appeal, concluded Circuit Judge William C. Bryson and Echostar would be harmed if it had to shut down. The ruling wasn’t based on the merits of Echostar’s ultimate case.Dale’s Comment: I can’t say this was unexpected. Disappointing, but not unexpected.

Text of Amended LimeWire Counter Claim (Nov 17, 2006) Text of LimeWire Counter Claim (Sept 25, 2006) Text of Arista Complaint Against LimeWire (Aug 4, 2006)On August 4, the music industry sued LimeWire as it had every other major P2P provider before. LimeWire's parent, Lime Group LLC, has filed a counter suit alleging that the case against it is "part of a much larger conspiracy to destroy all innovation that content owners cannot control and that disrupts their historical business models". LimeWire also charges the record companies with trying to extend their monopoly by forcing music distributors to work only with their affiliated filtering system supplier. LimeWire says it developed a filtering application to prevent illegal downloading and encourage legal content purchasing. But the record companies refused to give the developer access to the metadata that uniquely identifies each song in order for the filtering system to work.

Last November the MPAA accused millionaire Shawn Hogan of illegally downloading Meet the Fockers over BitTorrent. Hogan denies the accusation and has vowed to fight the MPAA's "abuse" of the system. Many defendants to such RIAA/MPAA driven actions pay up because they can't afford the legal bills to fight them. According to Hogan:

"Someone has to stand up to these clowns… their scare tactics make them sounds pretty foolish IMO. First of all, I would rather spend $US100,000 and not pay them $US2,500 than to just give them $US2,500 (it's about the principle)."

In an earlier post I had noted that an open WiFi connection could act as an affirmative defense against the RIAA's IP-centric lawsuit tactics because anyone could have been using a defendant's open (ie: non-encrypted) WiFi connection to download P2P content. It appears the RIAA dropped a case on that exact basis back on January 24, 2006.

Dale's Update [Aug 4, 2006): The original reports about this case mentioned that Ms. Marson had an open WiFi and that was the basis of the dismissal. The later reports, see for instance the ars technica report, are now saying that Ms. Marson a cheerleader teacher that had hundreds of girls come to her house, anyone of which could have used her computer to download music. Some reports (eg: the register) say both defenses were used. The net result, however, still seems to be the same. When you can show evidence that someone other than the IP address owner/user had access to Internet connectivity through that IP address, that may very well be an affirmative defense – as would be the case with a computer with open WiFi. While ars technica is quite right that no judgment has yet turned on this point, it seems to me evidence of an open WiFi would be at least as compelling a defense. And who knows, the RIAA may already have dropped open-WiFi defense cases without disclosing this to the public.

This is amusing. Minutes after posting the Von Lohmann story below about how the DMCA is shielding YouTube from law suits, I come across this new story that YouTube is being sued by an L.A. news service over its users' posting videos containing its copyrighted coverage of the 1992 L.A. riots on the YouTube service.

Text of Dismissal and Final OrderAfter refusing to pay the RIAA’s standard $5,000 settlement demand, a mother who didn’t even own a computer fought the RIAA in court. Over the RIAA’s objections, she was awarded attorneys fees and the case alleging copyright infringement for file sharing was dismissed after the RIAA failed to provide details as to the time and name of files allegedly downloaded to her computer.

Streamcast claims in a lawsuit filed Monday in the U.S. Central District Court in Los Angeles that Niklas Zennstrom and Janus Friis, the duo who developed the technology behind the company’s Kazaa and Skype, of breaking an agreement to give StreamCast the first right to purchase their FastTrack peer-to-peer protocol. StreamCast is seeking more than $4 billion in damages.Sources:CNet | USA Today (AP) | ars technicaNote: Streamcast has become quite litiguous of late. In April Streamcast turned about-face and chose to battle the RIAA and the MPAA despite earlier statements to the contrary. See earlier related stories posted on April 10, 2006.

Evidently TiVo and Echostar could not agree on a post-judgment settlement. TiVo is now seeking a court order shutting down Echostar’s competing DVR. TiVo is seeking an order that would disable the DVR functionality in all but 192,702 of EchoStar’s DVRs already placed with customers. TiVo also seeks a recall of Echostar DVR products already with distributors and retailers and to stop the production of infringing products. A hearing on the matter is set on June 26/27. Echostar promises to challenge the jury trial verdict.

Text of Music Industry ComplaintThe RIAA, in a law suit filed this week in federal court in New York, seeks a $150,000 in damages for every song that may have been copied by XM listeners, claiming that devices such as XM’s new Pioneer Inno and the Samsung Helix violate copyrights. Despite the fact that recording from the radio has always been considered fair use in the U.S., and the fact that music cannot be extracted from XM’s recording devices, the music industry believes that the quality of satellite radio makes it a “free iTunes” of sorts. Michael Petricone, vice president of government affairs at the Consumer Electronics Association, said that the RIAA is trying to block an activity that “has always been considered legal” and expressly recognized by Congress as “protected from lawsuit.” The music industry fails to mention in its complaint that home recording of music is permitted under the Audio Home Recording Act (1992). That legislation allows consumers to digitally record music from CDs and broadcast transmissions for personal use, but prevents making digital copies from copies. “Sirius radio is not named in the suit because it had previously negotiated a deal with the RIAA for devices like the Inno and the Helix.

USPTO Documents Filed Pertaining to this ChallengeEchoStar filed a request late last year with the USPTO to reexamine TiVo’s ’389 “multimedia time warping system” patent. Engadget reports that Echostar is going the way of RIM/NTP and are asking Judge Folsom to stay the judgment until word comes back from the patent office.

Source:EngadgetDale’s Comment: Since the TiVo victory, numerous postings on various TiVo forums have indicated that TiVo has been negotiating a licensing deal/settlement with Echostar. No decision on treble damages for willful infringement has yet been handed down. And, of course, Echostar’s patent infringement counter suit against TiVo is still scheduled for next year.